Jones v. Selsky

47 A.D.3d 1030, 849 N.Y.S.2d 128

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 2008
• Status: Published

Opinion

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of the Commissioner of Correctional Services which found petitioner guilty of violating certain prison disciplinary rules.

Following an investigation, it was revealed that petitioner had requested his fiancée to bring marihuana into the correctional facility where he was incarcerated. After she arrived at the facility, she gave a written statement indicating that petitioner had made this request during a telephone conversation, but that she did not comply. She consented to a strip search as well as a search of her vehicle and no marihuana was found. Petitioner was subsequently charged in a misbehavior report with conspiracy to possess contraband and soliciting another to smuggle contraband into the facility. He was found guilty of these charges at the conclusion of a tier III disciplinary hearing, and the determination was affirmed with a reduced penalty. This CPLR article 78 proceeding ensued.

We confirm. Substantial evidence consisting of the misbehavior report, the testimony of the investigator who prepared it, and the written statement of petitioner’s fiancee support the determination of guilt (see Matter of Umber v Murphy, 304 AD2d 931, 932 [2003]). The testimony of petitioner and his fiancée that the written statement was coerced presented a credibility issue for the Hearing Officer to resolve (see Matter of Rivera v Goord, 3 AD3d 634, 635 [2004]). Consequently, we find no reason to disturb the administrative determination.

Cardona, P.J., Peters, Carpinello, Rose and Lahtinen, JJ., concur. Adjudged that the determination is confirmed, without costs, and petition dismissed.